December 2021 Building a preventative culture • The positive duty in WHS law is revolves around a particular area of public life – work. A positive duty in discrimination law would extend beyond factors associated with ‘work’, applying to all areas of public life, and would complement the approach in WHS. • A positive duty would require organisations to place greater priority on the prevention of discrimination and harassment. • A positive duty is likely to have a more significant preventative impact being placed at the front or upstream end, looking at unlawful discrimination on a continuum, than the vicarious liability provisions that already exist at the back end or downstream. • As the example of the Victorian law shows, a positive duty can, and should, be framed in a manner that is sensitive to issues such as the size and resourcing of organisations – a factor that addresses the concerns of industry groups. • Businesses that ‘do the right thing’, which is most businesses, have nothing to fear from a positive duty, given that all such a duty requires is the taking of reasonable and proportionate measures. • Any positive duty should also be accompanied by significant education and other outreach, as well as support for the Commission, legal assistance providers and business peak bodies, to be able to provide clear and accessible guidance about the positive duty. • In its introductory phase, there should be a significant focus on co-regulatory mechanisms to embed understanding of the positive duty in the community. However, on its own, this is not adequate and there should be enforcement mechanisms that also attach to the positive duty to ensure that it is of sufficient importance to shift culture. • To ensure that there is broad understanding of the actions required as a result of a positive duty in discrimination law, and to enable organisations time to assess their current business practices, the Commission considers that it would be appropriate to stage the introduction of a positive duty by providing a 12-month grace period before it came into legal effect. Resourcing should be provided in this timeframe to build awareness and to support business. This would also address concerns about any new obligation as set out by business groups. • There are likely to be significant benefits that would flow to businesses from an approach grounded in a positive duty – particularly in avoiding legal actions and damage to business reputation, and in avoiding unseen costs of discrimination, such as loss of productivity, morale, and the potential that diversity offers business. Support to business should be prioritised and appropriately funded to ensure this benefit flows. • A positive duty would set the bar for the values and standards for discrimination law compliance. • A positive duty would rebalance the discrimination law system to focus on prevention rather than redress and is critical to improving the overall effectiveness of federal discrimination law. 78 FREE AND EQUAL An Australian Conversation on Human Rights